圖書館DVD串流影音服務的合法性

有不少圖書館為了讓DVD影片可以不受播放場地限制,把DVD轉檔後以串流方式提供服務,讓師生可以在特定區域透過網路觀看。所謂特定區域可以是在圖書館、校園、或者任可地方,只要經過身份認證就可以觀看。但這樣的做法可能要考慮是否有適法性的問題。


影音串流

Christopher Harris 前不久在 American Libraries Magazine 網站上分享了 UCLA 在 2010年因為在校園網路提供DVD串流影音服務遭到 The Association for Information Media and Equipment (AIME) 及 Ambrose Video Publishing (AVP) 控告侵權一事,前後2度提告,分別在 2010年10月及去年(2012) 的11月被法院駁回。

這是不是意謂著其他學校圖書館的DVD串流影音服務就不會被告? Harris 從法院的判決歸納出3個關鍵因素:合理使用、授權、及技術方面。引用其觀點如下:

Fair use

In this case, the court found ambiguity as to whether or not streaming a DVD would constitute fair use. The judge noted that the use was certainly educational in nature and that even though the item in question was a creative work (say, a production of a Shakespeare play), the purely educational nature of the use balanced out the issue. As to the percentage of the work used, the court found that despite the argument that DVD streaming was analogous to time-shifting, there was probably a slight tilt against fair use. In looking at the impact on potential DVD sales, the judge clearly stated that there was no impact: “A student who watches an AVP [Ambrose Video Publishing] DVD in a classroom is no more likely to purchase the DVD than if the student watches the DVD on his or her computer.” In the end, the judge found that, despite the ambiguity, it would not have been clear to a reasonable person that this wasn’t fair use, which seems to be a double negative implying that a reasonable person would find streaming DVDs via a closed network to be fair use.

Licensing

The second key aspect of the case was the claim by AIME and AVP that the AVP license clearly disallowed streaming and so UCLA was knowingly violating the agreement. The court again found ambiguity. The marketing brochures from AVP stated that schools and libraries received public performance rights, but the terms and conditions seemed to offer conflicting statements. The terms and conditions forbid AVP materials from being duplicated, broadcast, or transmitted by cable or otherwise on any open multireceiver or internet system. The court found that this was unclear; a reasonable person might conclude that streaming within a closed network to authorized viewers would therefore be allowed. The closed nature of the UCLA network and a statement in the terms and conditions that the university had authorization “for exhibition to nonpaying private audiences” led the judge to grant the motion to dismiss.

Technical aspects

The third key point to look at in this ruling is the judge’s review of the technical aspects of the case. This final ruling reiterated the 2011 decision that “any copying of the DVDs was incidental to the right that Plaintiff licensed to Defendants, and therefore constitutes incidental fair use.” The order goes on to clarify that this ruling covers even the copying of the DVD required to upload it onto the streaming server. The court also dismissed the claim by AIME and AVP that copies were further created and publicly distributed by the simultaneous existence of the DVD copy on the streaming server and on the end-user’s computer. As the judge notes, the copy on the end-user’s computer is not fixed and so does not infringe in this instance. Finally, the order also dismissed claims regarding a potential DMCA violation. The judge found that since UCLA had lawful access to the DVDs, its usage of those DVDs was allowed.

所以到底學校圖書館可不可以把DVD以串流方式來提供服務? 從上面的說明看來合法與不合法之間是有點模糊空間,就看法官如何認定,以及DVD出版商的授權文件內容,所以 Harris 建議在提供此類服務之前最好先尋求法律顧問協助。

國內也有不少圖書館提供DVD串流影音服務,不曉得在這方面有沒有研究過? 不過到目前為止,應該都沒事才對。

延伸閱讀:
American Libraries Magazine - Beyond Ebooks: A Question of DVD Streaming

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